Last week I mentioned one of the reasons the states lost the rights and prerogatives that were supposed to be retained by them under the Tenth Amendment. This week I’ll point to an amendment to the Constitution that had the unintended effect of further undermining the Tenth Amendment, but more importantly, there may be a lesson we can learn from how that amendment passed that might point a way forward today.

In my commentary How We Lost the Tenth Amendment, I pointed out how the Supreme Court has increasingly encroached on the rights of the states and why Congress has failed to protect the states. But it is not just the Court that has trampled on the rights of states; Congress itself has often gotten in on the action.

The Intended ‘Checks’ on Congress

There was one very important protection given the states under the original Constitution that would have incentivized pushback against the Court and legislative restraint by Congress. It was the “election” of U.S. Senators by the state legislatures. Let me give you a real-life example of how that check might have worked.

How the ‘Check’ Worked in Real Life

As a state Senator, I remember carrying a bill to change a state law in order to comply with a federal mandate on the collection of child support, an inherently state function, like the issue of marriage recently taken over by the Court. The mandate was so egregious and contemptuous of our state law that the mild-mannered and gentlemanly former state Sen. Douglas Henry, a Democrat, slammed down his microphone after speaking against the bill and excused himself from the Senate chamber lest, in his own words, he say something he would regret. The contempt for Congress at that moment was virtually unanimous and bi-partisan!

I tell you that to assure you of this. That particular law would never have passed the U.S. Senate if those then serving in the Senate had had to come to us the next time they were up for “election.” They would have been turned out on their ear.

But here is the key point: It was an issue that the majority of Tennessee’s voters were unaware of and one that would not have damaged their chance of re-election based on popular vote.

The Amendment That Solved What Problem?

Popular vote for the members of the U.S. Senate is exactly what we got with the adoption of the Seventeenth Amendment. It replaced the selection of senators by state legislatures with direct elections

This is not to say that there were no problems with the selection by state legislatures of the members of the Senate. There were mainly two. The first was a feeling that senatorial elections were “bought and sold,” William Clark of Montana famously saying that when he bought a state legislator for the Senate, he expected him to stay bought. The second was that legislatures sometimes reached an impasse on who to select, and a Senate seat would go vacant for a while.

But do we not today feel like elections for the U.S. Senate are still all about who has the most money? Was the problem really solved, or was the pot of money needed to “buy” an election just made bigger and put more out of reach by more people because of the number of votes that now have to be “bought?” The deadlock issue was not that frequent, and the losers were the states themselves; they had a disincentive to deadlock.

A Plan Going Forward

Interestingly, the pressures that brought about the Seventeenth Amendment might be instructive in restoring some vitality to the Tenth Amendment.

The movement for the Seventeenth Amendment began in earnest in the late 1800s, but by 1910, thirty-one state legislatures had passed resolutions in support of a constitutional amendment for direct elections. That same year, the Senate was awakened to the demands of the people by seeing ten Republican senators opposed to the amendment forced out of their seats. And by 1912, twenty-seven states had called for a constitutional convention on the subject, close to the thirty-one then states needed to force the call.

Today, the call for a constitutional convention is growing louder. Tennessee’s Senate resoundingly passed a resolution for a convention last year and the House will take it up this year. Whether the convention is a good idea is a discussion for another day, but it is a means by which the states can raise their voices.

What is missing is a growing movement of states passing resolutions demanding Congress interpose itself between the states and the federal judiciary and the defeat of a few members of Congress who do not head those resolutions. Perhaps during the next legislative session we can start a “resolution movement” by passing a demand that Congress reign in the federal courts by various means. Then we can press this issue in future Congressional elections, starting next year.

I’m up for it. Are you?

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.